M/S Hidayatullah National Law ... vs National Faceless Assessment Centre
2025 Latest Caselaw 1973 Chatt

Chattisgarh High Court

M/S Hidayatullah National Law ... vs National Faceless Assessment Centre on 18 February, 2025

                                    1




                                                 2025:CGHC:8464
                                                               AFR

          HIGH COURT OF CHHATTISGARH AT BILASPUR

                  ORDER RESERVED ON 19.11.2024
                 ORDER DELIVERED ON 18.02.2025

                          WPT No. 178 of 2024

1 - M/s Hidayatullah National Law University, Raipur, Having Its Office At
Uparwara Village, Abhanpur Tehsil, Naya Raipur, Raipur- 493661,
Chhattisgarh. Through Its Authorized Signatory, Dr. Vipan Kumar
(Registrar), S/o Shri Gulshan Kumar Goyal, Aged About- 42 Years, R/o
Hidayatullah National Law University, Sector 40, Nava Raipur Atal
Nagar, Raipur, 493661, Chhattisgarh (C.G.)
                                                    ... Petitioner(s)


                                  versus


1 - National Faceless Assessment Center, Income Tax Department,
Ministry Of Finance, Delhi.


2 - Commissioner Of Income Tax (Appeals), Income Tax Department,
Raipur, District- Raipur (C.G.)


3 - Assistant Commissioner Of Income Tax, Circle (Exemption), Raipur
(C.G.)
                                                    ... Respondent(s)

1 - M/s Hidayatullah National Law University, Raipur Having Its Office At Uparwara Village, Abhanpur Tehsil, Naya Raipur, District - Raipur - 493661, Chhattisgarh Through Its Authorized Signatory, Dr. Vipan

Kumar (Registrar), S/o Shri Gulshan Kumar Goyal, Aged About 42 Years, R/o Hidayatullah National Law University, Sector 40, Nava Raipur Atal Nagar, Raipur - 493661, Chhattisgarh

---Petitioner(s)

Versus

1 - National Faceless Assessment Centre Income Tax Department, Ministry Of Finance, Delhi 2 - Commissioner Of Income Tax (Appeals) Income Tax Department, Raipur, District Raipur Chhattisgarh 3 - Assistant Commissioner Of Income Tax Circle (Exemption), Raipur Chhattisgarh

--- Respondent(s)

1 - M/s Hidayatullah National Law University, Raipur Having Its Office At Uparwara Village, Abhanpur Tehsil, Naya Raipur, Raipur - 493661 (C.G.) Throught Its Authorized Signatory, Dr. Vipan Kumar (Registrar), S/o. Shri Gulshan Kumar Goyal, Aged About 42 Years, R/o. Hidayatullah National Law University, Sector - 40, Nava Raipur, Atal Nagar, Raipur - 493661 (C.G.)

---Petitioner(s)

Versus

1 - National Faceless Assessment Centre Income Tax Department, Ministry Of Finance, Delhi 2 - Commissioner Of Income Tax (Appeals) Income Tax Department, Raipur, District - Raipur (C.G.) 3 - Assistant Commissioner Of Income Tax Circle (Exemption), Raipur (C.G.)

--- Respondent(s)

1 - M/s Hidayatullah National Law University , Raipur Having Its Office At Uparwara Village, Abhanpur Tehsil, Naya Raipur, Raipur - 493661, Chhattisgarh, Through Its Authorized Signatory, Dr. Vipan Kumar (Registrar), S/o Shri Gulshan Kumar Goyal, Aged About 42 Years, Resident Of Hidaytullah National Law University, Sector 40, Nava Raipur Atal Nagar, Raipur - 493661, Chhattisgarh (C.G.)

---Petitioner(s)

Versus 1 - National Faceless Assessment Centre Income Tax Department, Ministry Of Finance, Delhi 2 - Commissioner Of Income Tax (Appeals) Income Tax Department, Raipur, District Raipur (C.G.) 3 - Assistant Commissioner Of Income Tax Circle (Exemption), Raipur (C.G.)

--- Respondent(s)

1 - M/s Hidayatullah National Law University, Raipur Having Its Office At Uparwara Village, Abhanpur Tehsil, Naya Raipur, District - Raipur - 493661, Chhattisgarh Through Its Authorized Signatory, Dr. Vipan Kumar (Registrar), S/o Shri Gulshan Kumar Goyal, Aged About 42 Years, R/o Hidayatullah National Law University, Sector 40, Nava Raipur Atal Nagar, Raipur - 493661, Chhattisgarh

---Petitioner(s)

Versus

1 - National Faceless Assessment Centre Income Tax Department, Ministry Of Finance, Delhi 2 - Commissioner Of Income Tax (Appeals) Income Tax Department, Raipur, District Raipur Chhattisgarh

3 - Assistant Commissioner Of Income Tax Circle (Exemption), Raipur Chhattisgarh

--- Respondent(s)

For Petitioner(s) : Mr. G.S.Shivadass, Sr. Advocate through VC along with Mr. Anumesh Shrivastava Advocate For Respondent(s) : Mr. Ajay Kumrani, Advocate on behalf of Mr. Amit Choudhary, Advocate

(Hon'ble Shri Justice Arvind Kumar Verma)

C A V Order

Since the question of law involved in the batch of petitions under

Article 226 of the Constitution of India have been heard on the

maintainability of the writ petitions as well as on merits.

2. By way of the instant writ petitions, the petitioner is challenging

the order of the Respondent No.2 under Section 250 of the Income Tax

Act, 1961 dated 29.12.2023 whereby the penalty proceedings initiated

against the petitioner pertaining to the assessment year 2015-16 were

decided in a manner prejudicial to the natural justice.

3. Facts of the case in brief is that the petitioner concerned is

engaged in advancement of learning, teaching, research and diffusion

of knowledge in the field of law. The income tax return filed by the

assessee for the assessment year 2015-16 was reopened for

assessment. That the respondent No.2 denied exemption under Section

10(23C) (iiiab) of the Income Tax Act, 1961 to the petitioner on the

ground that it was not substantially financed by the Government. The

petitioner had preferred an appeal to the Respondent No.2 who

dismissed the appeal without considering the contentions put forth in the

written submission of the petitioner and without affording opportunity to

the petitioner for hearing. The respondent No.2 decided the appeal 6

years after the date of institution of the appeal and without serving a

copy of the impugned order to the petitioner. The respondent No.3 has

initiated penalty proceedings against the pertinent. Thus, being

aggrieved by the revenue oriented approach of the respondents and a

continuous violation of the principle of natural justice has preferred the

instant writ petition.

4. The Petitioner is a not for profit institution created through a State

Government legislation and exists solely for the purposes of imparting

education in law. The petitioner receives grants from the Government to

carry out its operations and had sought to claim income tax exemption

under Section 10923C)(iiiab) of the income Tax Act, 1961. The term

"wholly or substantially financed" is not defined under the act and thus

was interpreted to varying degrees by various courts and Tribunals.

Rule 2BBB was added to the Income Tax Rules, 1962 on 12.12.2014

which, when read with the Explanation added to Section 10(23C) (iiiab)

that came into effect on 01.04.2015 (AY 15-16 onwards) states that an

institution would be considered as being wholly or substantially

financed" by the Government for any previous year if the government

grants to the institution exceeded 50% of its total receipts, including

voluntary contributions, for that previous year. It is to be noted that the

Explanatory notes the finance (No.2) Act, 2014 which inserted the

Explanation to Section 10923C) (iiiab), clarifies that the amendment

shall be applicable from Assessment Year 2015 onwards and that the

same will be applicable only prospectively.

5. The income tax returns filed by the petitioner for the assessment

years 2011-12, 2012-12,2015-16, 2016-17 and 2017-18 were selected

for scrutiny and proceedings were initiated by the respondent No.3. The

respondent No.3 proceeded to pass adverse orders denying the benefit

of exemption under Section 10(23C)(iiiab) of the Act to the Petitioner.

For the Annual Year 2011-12 and 2012-13, respondent NO.3 also

retrospectively applied rule 2BBB of the Rules.

6. Being aggrieved by the orders of the respondent No.3, the

petitioner filed appeal before respondent No.2 seeking for the orders to

be set aside on the ground that the AO had erred in rejecting the

exemption claimed by the petitioner under Section 10(23C)(iiiab). The

respondent No.2 however passed orders against the petitioner for the

Annual Year 2011-12, 2012-13, 2015-16, 2016-17 and 2017-18 on

29.12.2023 without giving any regard to the grounds raised or

opportunity of personal hearing and these orders were never

communicated to the petitioner. It came into the knowledge of the

petitioner when Orders-in-Appeal were passed. Five impugned orders

were passed against the petition which is a violation of the principles of

natural justice. All these orders were passed ex parte after a

considerable delay of 4-6 years and without consideration of any of the

grounds submitted by the petitioner. Thus, the petitioner filed

rectification applications before the Respondent No.2 stating inter alia

that it had not considered any of the submissions of the petitioner and

the impugned orders were in clear violation of principles of natural

justice. Hence the above writ petitions have been filed.

7. Contention of learned Senior counsel for the petitioner is that the

proceedings before respondent No.2 were in violation of the principles

of natural justice. It is submitted that Section 250 of the Income Tax Act,

1961 provides fro "Procedure in Appeal". Section 250(7) mandates that

upon disposal of the appeal, the Commissioner (Appeals) must

communicate the order passed to the assesseee. An extract of the

provision is produced here below:

"(7). On the disposal of the appeal, the Commissioner (Appeals) shall communicate the order passed by him to the asessee and to the Principal Chief Commissioner or Chief Commissioner of Principal Commissioner or Commissioner."

(2) The following shall have the right to be heard at the hearing of the appeal (a) the appellant, either in person or by an authorized representative; (b) the Assessing Officer, either in person or by a representative."

8. He contended that the impugned order was not physically

communicated to the petitioner in the instant case, at the time of

passing of the order nor was it uploaded to the income tax portal and it

came to the knowledge of the petitioner only when a reminder letter in

relation to show cause notice initiating penalty proceedings was

received on 20.05.2024. It is submitted that non-adherence to the

procedure prescribed in the Act is a gross violation of the principles of

natural justice as it denied the petitioner of the opportunity to file an

appeal against the Impugned order within the time limit specified under

the Income Tax Act 1961.

9. He next contended that as per Black's law dictionary (4 th Edition)

at page 349, it has been defined the term 'communicate' a "to bestow,

convey, make known, recount, impart' to give by way of information".

The passing of the impugned order,or its contents were never made

known to the petitioner and information regarding the same was not

given until the petitioner realized the same due to receiving the reminder

letter pertaining to a Show Cause notice initiating penalty proceedings.

Contention of the counsel for the petitioner is that the petitioner had

specifically requested an opportunity of being heard in the interest of

natural justice. In the impugned order, respondent No.2 has stated that

the appellant has not availed any opportunity adding/altering grounds of

appeal before the date of hearing and that the same was not availed. It

is submitted that even if the uploading of the impugned order the portal

is considered valid service/communication of the impugned order, the

appeal was filed by the petitioner on 01.02.2018 and it was decided six

years later ie. on 29.12.2023 without giving opportunity of hearing to the

petitioner which is violation of Clause of Section 250 of the Income Tax

Act, 1961. He has relied upon the matter of Union of India and Others

Vs. Uppuleti Devi Prasad and Others, W.P. No. 20054 and 20190 of

2016, MANU/AP/0533/2016 it has been observed that the Order in

Appeal to the Chief Commissioner and the Assessing Officer who was

also denied the opportunity of being heard in the appellate proceedings

was conduct unbecoming of a government servant.

10. The opportunity of personal hearing is a statutory mandate under

Section 250(1) and 250(2) of the Income Tax Act, 1961 and the same

has not been complied with before passing the impugned order. It is

submitted that the impugned order has also been passed in

contravention of Section 250(6A) which mandates that the appeal must

be decided within 1 year. Even though the clause grants some flexibility

by usage of the phrase "where it is possible, may hear and decide", the

impugned order has been passed six years after the date of institution

of appeal. It is submitted that despite these additional grounds being

raised, the Respondent No.2 stated in the impugned order that the

petitioner had not availed opportunity to add grounds of appeal. He has

relied upon the decision of the Apex Court in the matter of M.P. Power

Management Company Ltd. Jabalpur Vs. Sky Power Southeast

Solar India Private Limited and Others. (20230 2SCC 703, wherein it

has been observed that when the impugned decision is not based on

any principle or displays mere whim of the authority, it should be

considered arbitrary. An extract of the judgment is produced below:

"8. We would, therefore, sum up as to when an act is to be treated as arbitrary. The court must carefully attend to the facts and the circumstances of the case. It should find out whether the impugned decision is based on any principle. If not, it may unerringly point to arbitrariness. If the act betrays caprice or the mere exhibition of the whim of the authority it would sufficiently bear the insignia of arbitrariness. In this regard, supporting an order with a rationale which in the circumstances is found to be reasonable will for a long way to repel a challenge to state action. No doubt the reasons need not in every case be part of the order as such. If there is absence of good faith and the action is actuated with an oblique motive, it could be characterized as being arbitrary. A total non- application of mind without due regard to the rights of the parties and public interest may be a clear indicator of arbitrary action...."

11. He submits that the action of the respondent No.2 therefore have

prevented the petition from availing its right of being heard. He has

further placed his reliance on the judgment of the Apex Court in the

matter of Umanath Pandey V. State of Uttar Pradesh, 2009(327) ELT

241 (SC), wherein it has been observed that the principles of natural

justice are those rules which have been laid down by the Courts as

being the minimum protection of the rights of the individual against the

arbitrary procedure that may be adopted by a judicial, quasi-judicial and

administration authority while making an order affecting those rights.

These rules are intended to prevent such authority from doing injustice.

It has been observed as under:

"8. the adherence to principles of natural justice as recognized by all civilized States if of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences if in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard.

10. Principles of natural justice are those rules which have ben laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that nay be adopted by a judicial, quasi judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice."

12. In another decision of the Apex Court in the matter of Dharampal

Satyapal Ltd. Vs. Deputy Commissioner of Central Excise, 2015

(320)ELT 3 (SC) followed by the decision of the Supreme Court in

C.B.Gautam Vs. Union of India (1993) 1 SCC 78 holding that the

principle of natural justice is applicable even though it was not statutorily

mandated. It is submitted that non-consideration of the arguments and

not informing the petitioner of the impugned order violates the principles

of natural justice and the impugned order is therefore liable to be set

aside.

13. Another contention of the counsel for the petitioner is that the

wordings of Rule 2BBB as well as the explanation to the Section

10(23C) (iiiab) are ambiguous and in light of this ambiguity, they must

be interpreted liberally in favour of the assessee. It is submitted that

both the Rule 2BBB and the explanation to Section 10(23C)(iiiab) use

the words "shall be considered as being substantially financed by the

Government for any previous year'. This can be interpreted to mean that

if the asessee is found to substantially financed by the government,then

it should be considered as being substantially financed for all previous

years to that year. It has been held by the Apex Court in the matter of

Tarulata Shyam And Others V. CIT, AIR 1977 SC 1802, it has been

held that words cannot be imported t a statute which are not there.

Even if there is an omission, the same can only be remedied by

legislation and not by judicial interpretation.

14. Counsel for the petitioner submits that the petitioner has filed

these instant petitions for quashing and setting aside the impugned

order-in appeal NO. CIT(A), Raipur dated 29.12.2023 passed by the

respondent NO.2 without granting opportunity of hearing to the

petitioner as per Section 250 of the Income Tax Act, 1961.

15. Learned counsel appearing for the respondents submits that the

petitions have been preferred by the petitioner against the order of the

respondent No.2 under Section 250 of the Income Tax Act, 1961 dated

29.12.2023 and the penalty proceedings initiated against the petitioner

pertaining to the Assessment year 2011-12. It is submitted that the

Assessing Officer concluded the assessment order and called for

initiation of proceedings under Section 271(1)(c) of the Income Tax Act,

1961. Against the assessment order, the petitioner filed appeal under

Section 246A of the income Tax Act before the Commissioner of Income

Tax (Appeal) on 09.01.2019 wherein the CIT (A) has categorically

mentioned that "considering the totality of the facts and circumstances

of the case and following the ratio laid down in the case of DIT (E) Vs.

Tata Institute of Social Science (supra), since the Government grants

received by the appellant was 46.61% ie. below 50% as laid down in

rule 2BBB of the Income Tax Rules, 1962, it is held that the appellant is

not eligible for claim of exemption under Section 10(23C)(iiiab) of the

Act as the appellant failed to fulfill the requirement of section of wholly

or substantially financed by the Government. Hence, the action of the

AO is upheld."

16. He further contended that the order passed by the Commissioner

of Income Tax (Appeals) under Section 250 of the Income Tax is

appealable before the Income Tax Appellate Tribunal under Section 253

of the Income Tax Act as per Section 253(3) of the Income Tax Act,

every appeal under sub-section (1) or sub-section (2) shall be filed

within 60 days of the date on which the order is sought to be appealed

after being communicated to the assessee or to the Commissioner. He

submits that when the petitioner has not filed any appeal against the

order of the CIT(A) dated 29.12.2023, The Assessment Unit Income

Tax Department issued a show cause notice for penalty under Section

271(1)(c) of the Income Tax Act, 1961 on 22.04.2024. The petitioner

filed its reply on 25.05.2024 to the show cause notice under Section

271(1)(c) of the Act wherein it has been mentioned that the Assessee is

already in the process of filing appeal at Income Tax Appellate Tribunal,

Raipur against the order passed by the Income Tax Department and will

furnish the form 36 as soon as the process will be completed. He further

submits that instead of filing of appeal against the order of CIT (A) dated

29.12.2023, the petitioner had filed application for rectification under

Section 154 of the Income Tax Act for rectification of error/mistake in the

order dated 29.12.2023on 28.06.2024 and simultaneously the petitioner

has filed this writ petition against the order of the CIT (A) dated

29.12.2023. He submits that two parallel proceeding challenging one

and the same order is not permissible under the law.

17. He submits that once the petitioner has approached the Appellate

Authority invoking the provisions under Section 154 of the Act of 1961

by filing a statutory rectification, petitioner could not be permitted to file

writ petition during pendency of said rectification. In this regard, Apex

Court in the case of Satya Pal Anand Vs. State of Madhya Pradesh,

(2016) 10 SCC 767, has held thus:

"25. It is a well established position that the remedy of writ under Article 226 of the Constitution of India is extra ordinary and discretionary. In exercise of writ jurisdiction, the High Court cannot be oblivious to the conduct of the party invoking that remedy. The fact that the party may have several

remedies for the same cause of action,he must elect his remedy and cannot be permitted to indulge in multiplicity of actions. The exercise of discretion to issue a writ is a matter of granting equitable relief. It is a remedy in equity. In the present case, the high Court declines to interfere at the instance of the appellant having noticed the above clinching facts. No fault can be found with the approach of the High Court in refusing to exercise its writ jurisdiction because of the conduct of the appellant in pursuing multiple proceedings for the same relief and can also because the appellant had an alternative and efficacious statutory remedy to which he has already resorted to. This view of the High Court has found favour with Dipak Mishra J. We respectfully agree with that view."

18. He has further placed his reliance in the matter of Indo Colchem

Ltd. Vs Deputy Commissioner of Income Tax (2023) 149

Taxman.Com 30 (Gujrat) has held that Noticing the fat that much

water has flown after the objections were raised against the notice of

reopening was issued and as the petitioner is already before the

Appellate Authority, this Court does not deem it appropriate and detain

his petition as the petitioner cannot ride on two horses. Without entering

into the merits of the case, the Appellate Authority to consider all

aspects including the one which has been raised before this Court.

19. In the matter of Tirupathi Buildings and Offices (P) Ltd. Vs.

Principal Commissioner of Income Tax (2023) 150 Taxmann.com

262 (Delhi) reads as under:

"7. In the opinion of this Court, the petitioner has an alternative and effective remedy by way of an appeal before the ITAT.

Accordingly, the present writ petition is disposed of with liberty to the petitioner to urge all his contentions and submissions before the ITAT."

20. Counsel for the respondent submits that the petitioner had

alternative remedy available and he may raise the issue before the

Appellate Authority and therefore, he submits that the petitions filed by

the petitioner may e dismissed and the same can be raised before the

Appellate Authority.

21. Heard learned counsel for the parties and perused the material

available records with utmost circumspection.

22. On perusal of the record, it appears that the income Tax return

filed by the petitioner for the Assessment Year 2011-12, 2012-13, 2015-

16, 2016-17 and 2017-18 were selected for scrutiny and proceedings

were initiated by the respondent No.3 to pass adverse orders denying

the benefit of exemption under Section 10(23C)(iiiab) of the Income Tax

Act to the petitioner. It is also admitted fact that the assessment year

2011-12, 2012-13, 2015-16, 2016-17 and 2017-18 was also

retrospectively applied Rule 2BBB of the Rules. Aggrieved by the orders

of respondent No.3, the petitioner had filed appeal before the

respondent No.2 on 09.01.2019. Since no orders were passed within

the time line of one year prescribed under Section 250 of the Income

Tax Act, additional submissions were filed by the petitioner on

23.05.2023 and specifically requested for opportunity of hearing.

23. From perusal of the records, it is clear that the impugned order

dated 19.12.2023 was passed without affording opportunity of hearing

to the petitioner and the same were not served to the petitioner either

physically or electronically. The petitioner originally challenged the order

of the Assessment Officer on 09.01.2019 but respondent No.2 has

passed the order on 29.12.2023 after a lapse of four years. In the

instant case, the petitioner has moved a rejoinder before the Appellate

Authority requesting for a personal hearing but the said request was not

considered by the Appellate Authority. If the aplication/request was

made for personal hearing by the petitioner before the Appellate

Authority, the Income Tax authority ought to have allowed the said

application by arranging for video conferencing argument. At least in

the instant case, it stands established the request from the petitioner

was made before the Appellate Authority but the Appellate Authority did

not give opportunity of hearing to the petitioner. Therefore, this Court is

of the considered view that there is a violation of principle of natural

justice and if the defect of principle of violation of natural justice has

occurred in the initial stage of proceedings, it cannot be cured at the

stage of appeal. No doubt, the petitioner has a right to avail the statutory

appellate remedy but when the impugned order was passed by the

respondent No.2 in violation of principle of natural justice, it cannot be

alleviated.

24. In the Institute of Chartered Accounts of India Vs. L.K.Ratna

and Others, AIR1987 SC71, Apex Court has held that the existence of

an alternative statutory remedy does not undo the violation of natural

justice in the first stage. A defect of natural justice existing in the trial

stage, cannot be cured by giving an opportunity of hearing at the

appellate stage. It is the contention of the counsel for the respondent

that the petitioner has already availed the remedy of rectification of the

order passed by the respondent No.2.

25. In view of the aforesaid discussion, given the aforesaid facts and

circumstances, it was incumbent upon the respondent to accord a

personal hearing to the petitioner. Since the petitioner has filed the

rectification application, in the event the impugned order is set aside

and the matter is remitted back to the respondent for re-consideration

afresh, the petitioner would unconditionally withdraw the rectification

application.

26. Thus, this Court is of the view that the principles of natural justice

to the aforesaid extent, particularly, when the Act itself provides for a

procedure for the same stands violated. The impugned order dated

29.12.2023 is set aside and it is directed that the petitioner shall appear

before the Appellate Authority/respondent No.2 on 28th February 2025

who shall fix the date of personal hearing to the petitioner and following

shall have the right to be heard at the time of hearing of the appeal:

(i) the petitioner, either in person or by an authorized representative

(ii) the Assessng Officer, either in person or by a representative.

The Appellate Tribunal shall thereafter decide the case within a period

of 45 days from the date of hearing of the appeal. The petitioner has

right to raise all objections which have been raised in the said petition

before the Appellate Tribunal.

27. It is made clear that this Court has not entered into the merits of

the assessment made by the Assessing Authority and the Apepllate

Authority would be free to take decision after hearing the parties.

Hence it would be just and appropriate to set aside the impugned order

and remit back to respondent No.2 for re-consideration afresh in

accordance with law.

28. In view of the above, the writ petitions are allowed to the aforesaid

extent.

Sd/-

(Arvind Kumar Verma)

Judge

SUGUNA DUBEY DUBEY Date:

2025.02.22 13:33:32 +0530